Sanford et al v. Preferred Staffing Inc et al

Filing 130

ORDER signed by Judge J P Stadtmueller on 3/20/2020: GRANTING 97 Defendants' Motion for Summary Judgment Regarding Liability; DENYING as moot 92 Defendant Kleen Test Products Corporation's Motion for Summary Judgment Regarding Joint Employer Status; DENYING as moot 124 and 125 Plaintiffs' Motions for Reconsideration; and DISMISSING CASE with prejudice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALLEN SANFORD, BRYANT DILL,
IRAIDA BABLITCH, and JOE
MALLORY,

Case No. 17-CV-1071-JPS

Plaintiffs,
v.

ORDER

PREFERRED STAFFING INC.,
STAFFWORKS INC., and KLEEN
TEST PRODUCTS CORPORATION,
Defendants.
Plaintiffs were hired by Defendants Preferred Staffing, Inc. and
Staffworks, Inc. (collectively, “Staffing Defendants”) to work at various
factories around Milwaukee. One such facility is operated by Defendant
Kleen Test Products Corporation (“Kleen Test”), and Plaintiffs’ work there
forms the heart of this case. Plaintiffs allege that Defendants have failed to
pay them for the entirety of their compensable work time in violation of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and Wisconsin
state law, Wis. Stat. § 109.03 & Wis. Admin. Code DWD § 272.12. (Docket
#26). Following Magistrate Judge David E. Jones’ departure from the bench,
this case was subsequently reassigned to this branch of the Court.
According to Plaintiffs, they were required to arrive at the Staffing
Defendants’ facility hours in advance of their work on the factory floor.
They would arrive and check-in, and then had to wait idly until they were
assigned to a particular building and assembly line at the Kleen Test facility.
Once they received an assignment, Plaintiffs were given safety goggles and

a short orientation about the work to be performed (if it was their first shift
at Kleen Test). Plaintiffs then boarded buses for the facility. The Staffing
Defendants did not guarantee work, however; not everyone who showed
up could be given a work assignment. Those people had to leave emptyhanded.
Once at the Kleen Test facility, Plaintiffs were required to wait in the
cafeteria until the shift started. There they received more detailed
instructions about the work and their work assignments. Plaintiffs then
worked and were paid for an eight-hour shift. Afterwards, Plaintiffs
waited, sometimes for up to an hour, for a Staffing Defendants’ bus to take
them back to the staffing facility. In total, Plaintiffs claim that they were
engaged for at least eleven hours in a workday, but were only paid for
eight.1
Defendants have moved for summary judgment, arguing that the
time spent outside Plaintiffs’ formal shift was not compensable. To
understand their position, we must begin more than seventy years ago. The
FLSA was enacted in 1938 to establish a minimum wage and to require
overtime compensation for hours worked in excess of forty in a given work
week. 29 U.S.C. §§ 206 & 207. The FLSA did not define “work,” however,
and so it was left to the courts to do so. In the mid-1940s, the Supreme Court
decided that “work” included any exertion, whether or not burdensome,
on behalf of an employer, and that it also encompassed all time during
which the employee was required to be on the employer’s premises or on

These are the relevant facts viewed most favorably to Plaintiffs. This
includes the Court generously overlooking Plaintiffs’ numerous failures to comply
with the rules of procedure regarding factual briefing. See (Docket #116 at 9–10)
(Defendants’ reply brief detailing those failures).
1

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duty. Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598
(1944); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91 (1946).
A flood of litigation followed, with workers asserting their right to
be paid for various pre- and post-shift activities. Integrity Staffing Solutions,
Inc. v. Busk, 574 U.S. 27, 31–32 (2014). Congress sought to stem the tide by
enacting the Portal-to-Portal Act in 1947, which exempted from the FLSA
time spent on
(1) walking, riding, or traveling to and from the actual
place of performance of the principal activity or activities
which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary
to said principal activity or activities,
which occur either prior to the time on any particular
workday at which such employee commences, or subsequent
to the time on any particular workday at which he ceases,
such principal activity or activities.
29 U.S.C. § 254(a).
To assess the scope of these rules, one must define “principal
activity.” A principal activity is considered that which the employee is
employed to perform. Id. (a)(1). Principal activities include not just the
discrete task the employee was hired to do, but also those tasks “which are
an integral and indispensable part of the principal activities.” Steiner v.
Mitchell, 350 U.S. 247, 253 (1956); see also IBP, Inc. v. Alvarez, 546 U.S. 21, 29–
30 (2005). Something becomes integral and indispensable for the principal
activities when “it is an intrinsic element of those activities and one with
which the employee cannot dispense if he is to perform his principal
activities.” Integrity Staffing, 574 U.S. at 33.
Whether an activity is integral to an employee’s work is a factdependent inquiry, but it is for courts and not juries to decide that threshold
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question. Llorca v. Sheriff, Collier Cty., Fla., 893 F.3d 1319, 1324 (11th Cir.
2018); see also Renfro v. City of Emporia, 948 F.2d 1529, 1536 (10th Cir. 1991)
(“[W]here there are undisputed facts as to whether a certain activity is a
compensable principal activity or a non-compensable preliminary or
postliminary task, the Court may appropriately grant summary
judgment.”). Courts require employees to be compensated for donning and
doffing uniforms and protective gear, IBP, Inc., 546 U.S. 28–30, post-shift
washing to remove potentially toxic chemicals, Steiner, 350 U.S. at 251–53,
and undergoing security screenings, receiving preshift briefings, and
managing necessary equipment, Aguilar v. Mgmt. & Training Corp., 948 F.3d
1270, 1277–83 (10th Cir. 2020). See also Meeks v. Pasco Cty. Sheriff, 688 F.
App’x 714, 717 (11th Cir. 2017) (police officer picking up his patrol car and
driving to his patrol zone was integral to police work). By contrast, courts
have found that time spent waiting to don and doff protective gear, IBP,
Inc., 546 U.S. at 40–42, waiting idly before the beginning of a shift, Bridges v.
Empire Scaffold, L.L.C., 875 F.3d 222, 226–27 (5th Cir. 2017), and changing in
and out of equipment for meal breaks, Mitchell v. JCG Indus., Inc., 745 F.3d
837, 840–42 (7th Cir. 2014), is connected but not intrinsic to the employee’s
principal activities, and thus not compensable work. See also Smith v.
Allegheny Tech., Inc., 754 F. App’x 136, 139–40 (3d Cir. 2018) (riding to and
from a factory in company vans, for forty-five minutes each way, was not
integral to the factory work).
In addition to those opinions, Integrity Staffing itself provides apt
instruction in this case. In that case, the Supreme Court held that a postshift security screening for Amazon warehouse workers was a noncompensable postliminary activity. 574 U.S at 35–37. It found that the
employees were there to retrieve and package items. Id. at 35. Going
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through a security screening had nothing to do with that task. Id. Indeed,
the screenings could have been entirely eliminated without any effect on
the employees’ work. Id.
The Court noted that the “integral and indispensable test is tied to
the productive work that the employee is employed to perform,” not “whether
an employer required a particular activity.” Id. at 36 (emphasis in original).
If the reverse were true, then this would undermine the very purpose of the
Portal-to-Portal Act which, for example, sought to eliminate FLSA liability
for time spent walking from the factory gate to the workstation. Id.
Additionally, “[a] test that turns on whether the activity is for the benefit of
the employer is similarly overbroad.” Id.
The Court finds that Plaintiffs’ activities before and after their formal
factory shifts are, like the security screening in Integrity Staffing, FLSAexempted pre- and postliminary activities. Plaintiffs were employed to
work on an assembly line. They were not employed to wait for a shift or
take bus rides to or from the factory. Defendants could have eliminated all
of the complained-of “work” time without any effect on Kleen Test’s
production. Things certainly may have been less efficient—Plaintiffs would
have needed to get to the factory on their own, or perhaps Kleen Test would
have simply needed to hire employees directly rather than use a staffing
agency—but that is not part of the Supreme Court’s definition of a principal
activity.
It does not matter that Defendants required Plaintiffs to wait before
and after their shifts, take buses to and from the factory, and receive some
orientation instructions prior to beginning work. It is also irrelevant
whether Defendants accrued some benefit from these requirements; indeed
they did, or else the requirements would not be in place. Again, a required
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activity is not the same as “the productive work that they employee is
employed to perform.” Id. at 36. Indeed, none of the time for which Plaintiffs
seek compensation was productive in any way.2 Plaintiffs are like the
Anderson workers who demanded pay for the time spent walking from the
timeclock to the assembly line. If the Portal-to-Portal Act is to have any
meaning, this cannot be considered compensable time. IBP, Inc., 546 U.S. at
41 (“We discern no limiting principle that would allow us to conclude that
the waiting time in dispute here is a ‘principal activity’ . . . without also
leading to the logical (but untenable) conclusion that the walking time at
issue in Anderson would be a ‘principal activity’ . . . and would thus be
unaffected by the Portal-to-Portal Act.”).
Plaintiffs’ arguments to the contrary are meritless. First, Plaintiffs
analogize their position to a mechanic whose usual job is to fix cars, but was
one day asked to work on payroll. Should the mechanic be paid for the
payroll work although he was hired to fix cars? Absolutely, and contrary to
Plaintiffs’ belief, this is consistent with Integrity Staffing and the cases cited
therein. The payroll work is the mechanic’s alternative principal activity at
the time, because it is the productive, economically valuable work he was
being asked to do by his employer. It was not “part of the ingress and egress
process,” of the job, but rather “constitute[d] the actual ‘work of
consequence performed for an employer[.]’” Integrity Staffing, 574 U.S. at 38
(Sotomayor, J., concurring) (quoting 29 C.F.R. § 790.8(a)).
Second, Plaintiffs claim that this result ignores the Staffing
Defendants’ business model. Plaintiffs note that they would cease to
At least in an economic sense. While at the Staffing Defendants’ facility,
Plaintiffs were free to read, socialize, and otherwise relax before the workday
began.
2

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function, at least in their current mode, if they did not require their
employees to check-in so early and take buses to and from the facilities they
service. Third, and in the same vein, Plaintiffs contend that the preliminary
processes required by the Staffing Defendants are indeed integral to the
principal activities they were hired to perform. Without those processes, the
Staffing Defendants could not guarantee their clients an appropriate
number of workers, and they could also not assign the workers to the clients
where the workers were needed.
Plaintiffs’ view again conflates the requirements an employer
imposes upon its employees with the actual work the employees are meant
to perform. Plaintiffs also forget that assessing exemption from the FLSA
based on whether an activity benefits an employer is “overbroad.” Id. at 36.
The Staffing Defendants’ onerous time requirements perhaps make them a
less desirable employer than some other companies that hire workers
directly. This bears only upon Plaintiffs’ decision to seek employment with
the Staffing Defendants. It does not transform any time spent waiting,
travelling, and orienting on Defendants’ behalf into compensable work
time. That is, instead, non-compensable ingress and egress time.
Plaintiffs’ final argument is that their waiting time should be
considered work because they were “engaged to wait,” or employed (in
part) to sit and wait for their work assignment, rather than “waiting to be
engaged,” which is merely pre-work idle time. Skidmore v. Swift & Co., 323
U.S. 134, 135–37 (1944). Case law has developed to distinguish between
these two states, but it is not particularly helpful to the case at hand. The
typical examples of being engaged to wait are firefighters and employees
who work on-call shifts. Plaintiffs’ work is nothing like those jobs. Instead,
this argument is a thinly veiled recasting of Plaintiffs’ other arguments
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regarding what should be considered integral to their principal work
activity. The Court rejects it for the same reasons.
Finally, the Court turns to Plaintiffs’ Wisconsin wage claim.
Wisconsin’s applicable regulations are substantially similar to the federal
ones, and so Wisconsin permits the use of federal wage cases to help
interpret them. United Food & Comm. Workers Union, Local 1473 v. Hormel
Foods Corp., 876 N.W.2d 99, 109 (Wis. 2016). Plaintiffs focus their arguments
on their own interpretation of the Wisconsin regulations. They offer no
reasoned basis to conclude that Wisconsin courts have a different view of
“principal activities” than the U.S. Supreme Court. In fact, the Wisconsin
Supreme Court has expressly addressed Integrity Staffing and found the
U.S. Supreme Court’s analysis consistent with its own. Id. at 109–12. The
Court will, therefore, dismiss the Wisconsin wage claim on the same bases
described above.
In sum, Plaintiffs have not shown that they were denied pay for any
time that they were legally required to be paid. Defendants’ motion for
summary judgment on liability must, therefore, be granted, and this action
dismissed. The Court will deny as moot a motion for summary judgment
filed by Kleen Test on whether it was a joint employer of Plaintiffs, and thus
jointly liable for Plaintiffs’ damages. (Docket #92). Also moot are two
motions filed by Plaintiffs seeking reconsideration of orders issued by
Magistrate Judge Jones. (Docket #124 and #125). The Court notes that those
motions would, in any event, be denied on their merits. Magistrate Judge
Jones’ rulings are consistent with the view of the law and the facts taken in
this Order. Plaintiffs’ motions, reduced to their core, reflect merely a
disagreement with that view. Reconsideration is not a substitute for an

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appeal. Tokh v. Water Tower Ct. Home Owners Ass’n, 327 F. App’x 630, 631
(7th Cir. 2009).
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
regarding liability (Docket #97) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant Kleen Test Products
Corporation’s motion for summary judgment regarding joint employer
status (Docket #92) be and the same is hereby DENIED as moot;
IT

IS

FURTHER

ORDERED

that

Plaintiffs’

motions

for

reconsideration (Docket #124 and #125) be and the same are hereby
DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2020.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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